Strip mine showdown could come this week

A week ago, state strip mine regulators asked environmentalists to sit down and help resolve complaints that permits for huge mountaintop removal mines violate the law.

John Ailes, chief of the Division of Environmental Protection's Office of Mining and Reclamation, asked for a meeting with West Virginia University law professor Pat McGinley and other environmental group lawyers.

In a June 12 letter, Ailes wrote that mountaintop removal concerns "should more effectively be addressed and refined through a dialogue among the various stakeholders, and state and federal regulators, rather than within the confines of a court proceeding."

After they received Ailes' letter, environmentalists and coalfield residents asked DEP to postpone issuing a new mountaintop removal permit in Logan County until alleged problems with the permit are worked out.

Late last week, DEP Director Michael Miano refused. Miano said he sees no reason to slow down issuance of new mountaintop removal permits.

"My guidance has been to continue as we have been doing," Miano said. "I have not been advised that we have been doing anything illegal or wrong. In the face of that, I don't see any reason to change what we're doing."

On Thursday, the West Virginia Highlands Conservancy and Logan County residents James W. and Sibby R. Weekley filed a formal notice that they plan to sue DEP if the agency doesn't back off the Blair permit.

The issue could end up in court this week, providing a much earlier legal showdown on mountaintop removal than anyone involved in the controversy expected.

"Premature action on the mining permit is likely to create a serious risk of conflict between the federal Water Pollution Control Act and the approved state surface mining program," Joe Lovett, another lawyer for the citizens, wrote in the notice of intent to sue.

The permit in question, the largest in state history, would allow Arch Coal Inc. to expand its Dal-Tex mining complex onto 3,100 acres along Pigeonroost Branch near Blair.

David Todd, a vice president and press spokesman for Arch Coal, declined comment on Friday.

Miano said his agency plans to move ahead with permit issuance, regardless of any lawsuits.

"I have several suits on my desk," Miano said. "We may get others. We will get to them in their turn."

The Dal-Tex mining permit is expected to be issued by Wednesday.

But strip mines must receive two types of permits: mining permits under the state Surface Mining Control and Reclamation Act, and National Pollution Discharge Elimination System, or NPDES, permits under the state Water Pollution Control Act.

On June 5, the U.S. Environmental Protection Agency filed a formal objection to stop the state from issuing an NPDES permit for the Dal-Tex mine expansion.

EPA Region III water protection chief Tom Maslany wrote that the mine "includes excavation of more than 400 feet of overburden material to remove 10 seams of coal in a five-square-mile area.

"Four major valley fills of excess overburden are planned, the largest of which will cover approximately one and two-thirds miles of the main channel of Pigeonroost Branch," Maslany wrote in a June 5 letter.

Maslany wrote that EPA wanted to review the permit in more detail to determine if it would comply with the federal Clean Water Act.

In their notice of intent to sue, environmentalists argue that DEP cannot issue the mining permit for Dal-Tex until EPA approves the water pollution permit.

The NPDES permit affects the size, length, and location of valley fills. The permit also affects the placement of in-stream sediment ponds, mine discharge monitoring points, and the post-mining land reclamation.

"Until the NPDES permit is in place, the Director cannot know if the application is in compliance with State and federal water pollution control laws," Lovett wrote.

The notice of intent to sue also charges that the Dal-Tex permit would violate a federal law which generally prohibits mining within 100 feet of streams.

Under the law, DEP can issue a waiver of that prohibition only if the agency first finds, in writing, that the mining activity will not violate state water quality standards.

DEP engineers and permit writers recommended the buffer zone waiver be approved, but did not make any conclusions about whether the mining would violate water quality standards.

For example, Larry Alt, a DEP permit supervisor, recommended the waiver be granted because "steep slopes in the area make it advisable that we allow for disturbance within 100 feet of a stream since they are going to be placing designated valley fills for the fifteen percent overburden excess spoil in the valley fills for in-stream drainage structures in order to control the disturbance of the valley fills."

The notice of intent to sue alleges these conclusions are not enough to allow approval of the buffer zone waiver.

"DEP could not possibly make such a finding at this time, because EPA stated in its June 5, 1998 letter that it believes that such activities may not comply with state water quality standards," the notice stated.

In the notice letter, Lovett wrote that environmentalists were disappointed with Miano's refusal to delay the permit. Miano would also not agree to a request that DEP notify the environmentalists 5 days before the permit is issued.

"We hoped that the Director, as a showing of good faith, would not force the issue," Lovett wrote. "The Director's refusal to provide us with such a limited assurance and his further refusal to provide us with even the requested five days notice is disconcerting.

"We are not attempting here to permanently block issuance of the permit, but are only asking the Director to withhold approval of the permit until it is complete, accurate, and in compliance with the approved State program."